LEGAL NOTES

Court rules against transwoman who sued after being fired from job as bus driver

The U.S. Court of Appeals for the 10th Circuit, the federal appellate court covering Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, has ruled against a transwoman who was fired from her job as a Salt Lake City bus driver.

The Utah Transit Authority (UTA) fired Krystal Etsitty shortly after she began living and working as a woman. During a training period at the UTA, Etsitty had dressed and driven as “Michael Etsitty,” using the men’s rooms along her route when necessary. Once her job began formally, Etsitty told her supervisor she would be driving as Krystal, and according to the court opinion, supervisor Pat Chatterton had no problem with the change.

But Krystal’s new appearance did not sit so well with division manager Betsy Shirley, who contacted Human Resources and called Etsitty into a meeting. After several personal questions revealed that Etsitty was pre-operative, the UTA officials put the driver on administrative leave.

Shortly thereafter, Etsitty was dismissed based on the idea that her use of women’s restrooms during her workday could leave UTA exposed to legal liability. Etsitty sued.

Her main claim was based on Title VII of the Civil Rights Act of 1964, the federal law against workplace discrimination, covering discrimination “because ofsex” and other factors.

Although Title VII doesn’t explicitly protect against sexual orientation or gender identity bias, many workplace disputes involving GLBT community members can be construed as plain old sex discrimination. Indeed, the U.S. Supreme Court has ruled that Title VII forbids forcing an employee to live up to a sexual stereotype. A woman cannot be fired or demoted for not being feminine. Likewise a man cannot be obliged to be macho in order to keep his job.

In a 25-page opinion, the unanimous 10th Circuit panel ruled that while Etsitty might or might not have a claim under Title VII, the Utah Transit Authority had a legitimate and non-discriminatory reason for terminating her employment.

The judges ruled that the bathroom excuse, along with the fear of legal repercussions, amounted to a perfectly logical rationale. Title VII protects employees against discrimination, but it does not protect staff from being fired for reasons relating to their performance or ability to do the job.

Here, however, neither the UTA nor the 10th Circuit had the slightest reason to believe that Etsitty’s use of the women’s bathroom would cause a disturbance or even be noticed. According to the court, the UTA even told Etsitty she could reapply for her driver’s job once she corrected her sex through surgery, an offer that suggests the agency assumed that the mere idea of a penis, even hidden behind a stall door, could theoretically compromise the safety of a public ladies room. Apparently, the 10th Circuit agreed with this strange notion.

In Washington, a state appellate court has backed Seattle Mayor Gregory Nickels, upholding Nickels’ 2004 executive order recognizing same-sex marriages for city employees.

Back in March of that spring, Nickels decreed that gay and lesbian couples who married in Canada or elsewhere would be treated like domestic partners if they worked for the city.

Although Washington has a law against same-sex marriage, that law does not bar cities like Seattle from offering partner benefits. Nor does offering partner benefits somehow translate into a marriage-like status. In essence, Nickels’ order simply allowed married same-sex couples to automatically be considered partners for the purposes of insurance benefits. The order was challenged by conservative taxpayers, who argued that Mayor Nickels was operating outside his authority and in violation of state law.

After a lower court sided with Nickels, the appellate court issued a terse 10-page opinion, agreeing in no uncertain terms that the mayor was within his rights on all counts.

According to press reports, the appellants, led by the far right American Family Association Center for Law and Policy, may appeal to the state supreme court.